Arvind Kumar. Vs. State of Uttar Pradesh (U.P.) and anr.

Arvind Kumar. vs State of Uttar Pradesh (U.P.) and anr.

Type Court Judgment Court Allahabad Decided Sep 29, 2010

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Citation: sooperkanoon.com/912229
Court: Allahabad High Court
Judge: Bala Krishna Narayana, J.
Decided On: Sep 29, 2010
Case Number: APPLICATION U/S 482 No. - 29977 of 2010.
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

[K.T. Thomas and; R.P. Sethi, JJ.] - Civil Procedure Code (CPC) - Sections 104 - Order 39, Rules 1, 2, 2A, 3A, 4 and 10 - Order 43, Rule 1; Constitution of India - Article 227 - Orders from which appeal lies -- When a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the ...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) - Section 482; Indian Penal Code (IPC) - Sections 147, 148,149,302.

Parties & Advocates

Appellant / Petitioner

Arvind Kumar.

Advocate Sidhir Shandilya, Adv.

Respondent

State of Uttar Pradesh (U.P.) and anr.

Legal References

Acts: Code of Criminal Procedure (CrPC) - Section 482; Indian Penal Code (IPC) - Sections 147, 148,149,302.
Cases Referred: Lal Kamlendra Pratap Singh vs. State of U.P. and

Excerpt

[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. second is the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing......having considered the submissions made by learned counsel for the parties and keeping in view the law laid down by the hon'ble apex court in rajan rai v. state of bihar (2006) 1 scc (cri) 209, benefit of the orders of acquittal of the co-accused persons cannot be extended to the applicant and hence in my opinion the proceedings of the case against the applicant can not be quashed by this court in its inherent jurisdiction u/s 482 cr.p.c. however, considering the facts and circumstances of the case, it is directed that if the applicant move application for appearance/surrenders before the court concerned within 30 days from today, the court concerned shall fix date on that application for surrenders/appearance.6. in the meantime the court concerned shall seek instruction from the prosecution side. in case, the applicant move the application for bail on the day of appearance or surrenders, the same shall be considered and disposed of expeditiously and if possible on the same day by the courts below, keeping in view the law/ guidelines laid down in smt. amrawati and another versus state of u.p. 2004 (57) alr (290) (seven judges' judgment of this court) and hon'ble apex court judgment in lal kamlendra pratap singh vs. state of u.p. and others 2009 (3) a.d.j. 322 (sc), but having regard to the observations made by the division bench of this court in pradeep tyagi v. state of u.p. and others 2009 (65) acc 443 and sheo raj singh @ chhuttan v. state of u.p. and others 2009 (65) acc 781.7. for a period of one month from today, the operation of the impugned order dated 24.1.2010 passed by c.j.m. jalaun at orai in the above case shall remain suspended. with this direction, the application under section 482 cr.p.c. is finally disposed of.

Full Judgment

1. Heard learned counsel for the applicant and learned AGA for the State. By means of this application under Section 482 of the Code of Criminal Procedure (in short 'the Cr.P.C.'), the applicants have invoked inherent jurisdiction of this court to quash the entire proceedings of case no. 3157 of 1990 (State v. Radha Raman & ors) under Sections 147, 148,149,302 I.P.C P.S. Madhoganj District Jalaun, pending in the court of Chief Judicial Magistrate Jalaun.

2. The first submission made by learned counsel for the applicant is that coaccused persons have been acquitted after trial and hence on the basis of the principle of Stare Decises, the applicant is liable to be acquitted of the charges framed against him and hence the entire proceeding of the case should be quashed by this Court in its inherent jurisdiction under section 482 Cr.P.C., as no useful purpose will be served to continue the proceedings of the case against the applicant. For this submission my attention was drawn towards judgment dated 21.11.2008 passed by Addl.

3. Sessions Judge, F.T.C. I, Jalaun at Orai in Session Trial No. 99 of 2008 (Annexure IV), judgment of the same date (Annexure-V) passed by the same Court in S.T No. 197 of 2008 as well as the judgment of the same date passed by the same Court in S.T. No. 13 of 1990, whereby the co-accused, Ram Kumar, Raj Kumar, Mohar Singh and Raj Narain @ Rajesh have been acquitted in case Crime No. 58 of 1989 P.S. Madhogarh District Jalaun. The applicant Radha Raman is also accused in the said case crime and separate charge sheet has been submitted against him, on which cognizance has been taken and the applicant has been summoned to face the trial by C.J.M. Jalaun at Orai.

4. It was further submitted by learned counsel for the applicant that the witnesses which have been examined in the Session Trial of co-accused persons, have to be examined again and since those witnesses have not supported the case of the prosecution, hence no useful purpose will be served by committing the case for trial of the applicant and hence this Court can quash the proceeding of the case against the applicant exercising the power u/s 482 Cr.P.C.

5. Learned A.G.A. on the other hand contended that on the basis of the judgments passed in the Session Trials of co-accused persons, no benefit can be extended to the applicant and hence this Court cannot quash the proceedings of the case against the applicant. Having considered the submissions made by learned counsel for the parties and keeping in view the law laid down by the Hon'ble Apex Court in Rajan Rai v. State of Bihar (2006) 1 SCC (Cri) 209, benefit of the orders of acquittal of the co-accused persons cannot be extended to the applicant and hence in my opinion the proceedings of the case against the applicant can not be quashed by this Court in its inherent jurisdiction u/s 482 Cr.P.C. However, considering the facts and circumstances of the case, it is directed that if the applicant move application for appearance/surrenders before the court concerned within 30 days from today, the court concerned shall fix date on that application for surrenders/appearance.

6. In the meantime the court concerned shall seek instruction from the prosecution side. In case, the applicant move the application for bail on the day of appearance or surrenders, the same shall be considered and disposed of expeditiously and if possible on the same day by the courts below, keeping in view the law/ guidelines laid down in Smt. Amrawati and another versus State of U.P. 2004 (57) ALR (290) (Seven Judges' Judgment of this Court) and Hon'ble Apex Court judgment in Lal Kamlendra Pratap Singh vs. State of U.P. and others 2009 (3) A.D.J. 322 (SC), but having regard to the observations made by the Division Bench of this Court in Pradeep Tyagi v. State of U.P. and others 2009 (65) ACC 443 and Sheo Raj Singh @ Chhuttan v. State of U.P. and others 2009 (65) ACC 781.

7. For a period of one month from today, the operation of the impugned order dated 24.1.2010 passed by C.J.M. Jalaun at Orai in the above case shall remain suspended. With this direction, the application under section 482 Cr.P.C. is finally disposed of.

Same Court & Year Allahabad · 2010 Same Parties Arvind Kumar. vs State of Uttar Pradesh (U.P.) and anr. Same Subject Criminal Same Judge Bala Krishna Narayana, J. Acts & Sections Code of Criminal Procedure (CrPC) - Section 482; Indian Penal...

Criminal